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[2017] ZALCJHB 140
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Minister of Justice and Correctional Services v Mashiya and Others (J16/2014) [2017] ZALCJHB 140 (5 May 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: J16/2014
In the
matter between:
MINISTER
OF JUSTICE AND
CORRECTIONAL
SERVICES
Applicant
and
N W
MASHIYA
First Respondent
POPCRU
Second Respondent
MORATHI
& MATAKA
ATTORNEYS
Third Respondent
THE
REGISTRAR OF THE LABOUR COURT
Fourth Respondent
THE
SHERIFF, PRETORIA
WEST
Fifth Respondent
THE
SHERIFF, PRETORIA
CENTRAL
Sixth Respondent
STANDARD
BANK OF SOUTH AFRICA
Seventh Respondent
Heard:
13 April
2017
Delivered:
5 May 2017
JUDGMENT
TLHOTLHALEMAJE
J
Introduction
[1] The
applicant approached the Court on an urgent basis on 8 March 2017
seeking a variety of interim orders. A
rule nisi
was granted
on 9 March 2017 by Steenkamp J. Some of the relief sought by the
applicant have since been abandoned, and it now
seeks confirmation of
the order in the following terms:
“
2.1
The applicant is granted leave to supplement its urgent application
dated 23 October 2013
and amend its notice of motion as contained
therein.
2.2
The writ of execution dated 25 September 2014 is set aside,
alternatively it is declared
that the judgment of Judge[s] Steenkamp
and Molahlehi have suspended the award pending the finalisation of
the review application
brought under case number JR2740/13.
2.3
Any attachment is uplifted.
2.5
The Sheriff is directed to immediately provide return of service
demonstrating which
account all monies were transferred to.”
Background
[2] This
matter has a protracted history dating back to 15 November 2013 after
an arbitration award was issued in favour of the
first respondent
(Mashiya), in terms of which his dismissal by the applicant was found
to have been substantively and procedurally
unfair. The Arbitrator
had ordered the applicant to reinstate Mashiya with full back-pay on
the salary he had earned at the time
of his dismissal, including all
salary increments he would have been entitled to but for his
dismissal.
[3]
Aggrieved by the award, the applicant then approached this Court in
December 2013 under case number JR2740/13 with a review
application. There is a dispute in regards to when the applicant was
made aware that a record of proceedings was available for
transcription. It was however contended on its behalf that it was
only notified on 26 February 2014. Having delivered the recording
for
transcription on 28 February 2014, it was then only made available in
June 2014 and served on Mashiya on 2 July 2014.
A supplementary
affidavit to the review application was also filed and served on 9
July 2014. It was common cause that the applicant
did not in its
review application, simultaneously seek an order to stay the
arbitration award.
[4]
Mashiya had reported for duty
on 6 January 2014. This was after he had certified the award in terms
of the provisions of section
143 of the LRA.
[1]
The applicant then approached the Court on an urgent basis to stay
the execution of the award under the present case number. The
matter
came before Steenkamp J on 9 January 2014, who had then issued
an order staying the execution of the award pending
the finalisation
of the review application. Mashiya’s subsequent application for
leave to appeal against that order was unsuccessful
as per the ruling
of Steenkamp J issued on 25 February 2014.
[5]
On the basis that the record of
the arbitration proceedings had not been filed on time, Mashiya
formed the view that the review
application was deemed to be
withdrawn in terms of the provisions of clauses 11.2.2 and 11.2.3 of
the Practice Manual.
[2]
He then approached the Registrar of this Court to issue a writ of
execution on 28 October 2014. The amount claimed was R1 966 565.40
(One Million Nine Hundred and Sixty Six Five Hundred and Sixty Five
Rands and Forty cents). The return of service on the writ was
29
October 2014 at Standard Bank, and the amount of R2 258 717.06
was then attached on 29 October 2014 by the Sheriff
(Pretoria Central).
[6] The
applicant again approached the Court under the present case number on
an urgent basis, to seek an order that the writ be
set aside,
alternatively stayed. The matter came before Molahlehi J on 31
October 2014, with Mashiya’s case being that the
review
application ought to be deemed to have been withdrawn in view of the
provisions of the Practice Manual. In a judgment delivered
on
5 March 2015, Molahlehi J issued an order in terms of
which he had granted condonation for the late filing of
the record
and the supplementary affidavit. He had further reinstated the review
application.
[7]
In January 2017, Mashiya then served the same writ on the
applicant that was previously issued. On 7 February 2017, an official
from Standard Bank informed the applicant that the Sheriff had
approached it with a warrant in terms of which the Bank was required
to make payment of an amount of R2 258 717.06 to the Sheriff,
Pretoria Central. Standard Bank wanted clarity from the applicant
as
to how to proceed in view of the warrant.
[8]
There was an exchange of correspondence between the office of
the State Attorney, the Sheriff, and Mashiya’s erstwhile
attorneys
of record (Morathi & Motaka Attorneys) in terms of
which the applicant sought to impress upon Mashiya that the writ had
been
stayed by Steenkamp J. It is significant to note that his
current attorneys of record are the third since his dismissal.
Mashiya
was further advised in that correspondence that he had
prematurely filed an answering affidavit to the review application,
as he
had done so prior to the delivery of the record of arbitration
proceedings or being served with the supplementary affidavit. He
was
further advised that he had since failed to file an answering
affidavit in compliance with the provisions of rule 7A (9) for
over a
period of two years, and informed that the review application, due to
his non-compliance with rule 7A (9), remained unopposed.
[9]
On 20 February 2017, the applicant discovered that monies had
been withdrawn from its Standard Bank account. The Bank later
confirmed
on 2 March 2017 that Mashiya’s writ had
been executed. The applicant then approached the Court with this
application
on 8 March 2017.
[10]
A
rule nisi
was then issued by Steenkamp J on 9 March
2017 as already indicated. Skosana AJ extended that rule on 30 March
2017 to 6 April 2017,
and to allow the applicant to file a
replying affidavit. Steenkamp J on 6 April 2017 then
postponed the matter to
11 April 2017. It was nevertheless heard on
13 April 2017.
[11]
The applicant has since abandoned all relief against POPCRU.
It is further not pursuing the issue of the reversal of the transfer
of monies as Standard Bank has since confirmed that the money was
kept in its suspense account. No further relief is sought from
the
fourth respondent (Morathi & Mataka Attorneys) since they no
longer represent Mashiya.
Urgency
and the application to supplement
[12] In
the light of the
rule nisi
that was granted on 9 March 2017,
it was argued on behalf of the applicant that this Court did not need
to consider whether the
matter deserved its urgent attention. This
contention cannot nonetheless be correct.
The
basis for the principle that on the return day, the Court has the
discretion to consider all aspects of the interim order, including
the issue of urgency was summarised by Brassey AJ in
Polyoak
(Pty) Ltd v Chemical Workers Industrial Union and Others
in the following terms:
“
Many,
but by no means all of these shortcomings are excusable when an
application is brought as a matter of urgency. In the press
of
circumstances, the court may be quick to grant interim relief when it
does so, when it does no more than oblige the respondents
to refrain
from doing what, in any event, they should not do. By the time the
return day arrives, however, the dust is settled,
and then it becomes
necessary for a court to consider whether a case has been made out
for the relief sought. That an interim order
has been granted in no
way prevents this process, for, being interlocutory, it serves to
dispose of none of the issues that arise
in the case. The absence of
opposition moreover, cannot cure deficiencies in the papers. Being
uncontroverted, the allegations
in the founding affidavit can be
accepted unless they are baseless or fanciful and they must still
embody evidence on which the
court can act. Failure to oppose an
application, in no way, constitutes an act of submission to the
relief sought. On the contrary,
respondents in an application that
makes out no case have a right to assume that the court will arrive
at this conclusion without
the aid of argument from them. On the
return day, in short, the court must be satisfied that a proper case
has been made out for
each facet of relief sought.”
[3]
[13]
It
therefore follows that the Court must determine whether a case had
been made out for all the forms of relief sought. In this
case, it
should be concluded that the applicant has satisfied the requirements
set out in rule 8 of the Rules of this Court.
[4]
On the pleadings, it is apparent that Mashiya intends to execute the
writ in the amounts mentioned. The fact that the writ was
long issued
as argued on Mashiya’s behalf is neither here nor there, as it
is its execution or intention to do so that creates
the urgency,
viewed together with other considerations under rule 8.
[14]
Flowing from correspondence received from
Standard Bank advising the applicant of Mashiya’s intentions on
3 March 2017, I
am satisfied as averred by the applicant’s
Acting Deputy Commissioner, Legal Services, Kekana, that prompt
action was taken
by the office of the State Attorney to attend to the
matter, including the appointment of attorneys on 6 March 2017. To
the extent
that this application was launched on 7 March 2017 and
filed with this Court on 8 March 2017, I am satisfied that
the
applicant acted with the necessary haste, and there is no basis
to conclude that the urgency in this matter is self-created.
[15]
I have further had regard to the
application for leave to supplement the applicant’s
urgent application dated 23 October 2014, and I see no cause why the
application
should not be granted. The same or similar issues were
raised before Molahlehi J,
albeit
he did not specifically
deal with the issue of the writ of execution in view of having
granted condonation for the late filing
of the record and the
supplementary affidavit. Furthermore, the facts leading to this
application are essentially the same, save
for other developments
that took place between Molahlehi J’s order and the launching
of the present application.
The
issues for determination and the submissions
[16]
Central to the determination of this
application is:
a)
Whether the review application had lapsed
in view of the provisions of clauses 11.2.6 and 16.1 of the Practice
Manual, and whether
the applicant ought to bring an application to
revive that application;
b)
whether to the extent that the review
application is alleged to have collapsed, there was no underlying
causa
to
attack the writ;
c)
whether the setting aside of the writ was
pronounced upon and thus
res judicata
;
d)
whether Mashiya had complied with the
provisions of
State Liability Act 20 of 1957
prior to executing the
writ; and
e)
whether the writ of execution was properly
issued in view of the quantum payable not having been quantified by
the Arbitrator when
the award was issued.
Evaluation
[17]
Mashiya holds the view that the review
application is deemed to have been withdrawn based on the provisions
of the Practice Manual.
It was however contended on behalf of the
applicant that the pleadings in the review application had been
closed, and the only
issue outstanding was for the matter to be
set-down by the Registrar of the Court.
[18]
Mashiya relies on the provisions of clause
11.2.3 of the Practice Manual for the contention that the review
application had lapsed.
The provision reads as follows:
“
11.2.3
If the applicant fails to file a record within the prescribed period,
the applicant will be deemed to have withdrawn
the application,
unless the applicant has during that period requested the
respondent’s consent for an extension of time
and consent has
been given. If consent is refused, the applicant may, on notice of
motion supported by affidavit, apply to the
Judge President in
chambers for an extension of time. The application must be
accompanied by proof of service on all other parties,
and answering
and replying affidavits may be filed within the time limits
prescribed by
Rule 7.
The Judge President will then allocate the file
to a judge for a ruling, to be made in chambers, on any extension of
time that
the respondent should be afforded to file the record.”
[19]
It was common cause that the same issue,
i.e., about the review application having collapsed, came before
Molahlehi J who had not
only granted condonation for the late filing
of the record of proceedings and the supplementary affidavit, but had
also reinstated
that review application. In the light of that ruling,
it follows that this Court cannot be called upon to determine the
same issue
and I fail to appreciate the reason Mashiya, in the light
of that order, would seek to persist with the same argument. As
matters
stand, the review application remains reinstated, and there
is no basis for any contrary contention.
[20]
Mashiya further placed reliance on the
provisions of clause 16.1 of the Practice Manual, which the relevant
portion reads as follows:
“
16.1
In spite of any other provision in this manual, the Registrar will
archive a file in the following
circumstances:
·
in the case of an
application in terms of
Rule 7
or
Rule 7A
, when a period of six
months has elapsed without any steps taken by the applicant from the
date of filing the application, or the
date of the last process
filed.”
[21]
Mashiya’s main contention was that
the order by Steenkamp J staying the execution of the arbitration
award pending the finalisation
of the review application had lapsed
and no longer had any effect, as the applicant had failed to
prosecute the review application
for a period of 24 months. These
arguments are however unsustainable for a variety of reasons. The
first is that the above provisions
specifically refers to
applications that have remained inactive for a period of over six
months. The provisions do not refer to
court orders, which, it is
trite remain in force and effect until executed or set aside.
[22]
The Registrar of the Court can only archive
files, but orders in those files remain in force and effect. It is
accepted that a file
may be archived in circumstances where a party
has not acted on that file for a period of six months. In this case,
flowing from
Molahlehi J’s order, the applicant had filed the
record of proceedings and a supplementary affidavit. It was contended
on
its behalf that it had made several attempts to secure a set-down
date with the Registrar of this Court.
[23]
Inasmuch
as the applicant seeks to lay the blame on the door of the Registrar
to the extent that the matter had not been allocated
a set-down date,
it is further my view that the provisions of the Practice Manual, and
in particular, clauses 11.2.3 and 16.1 are
not a substitute for the
provisions of
rule 11
of the Rules of this Court. Molahlehi J in his
judgment specifically held that the provisions of the Practice Manual
were simply
a procedural tool to facilitate the management of review
applications, and did not trump the Rules of this Court.
[5]
[24]
There is a perception amongst practitioners
in this Court that the raising of these provisions can lead to an
application being
dismissed, and this is premised on an incorrect
interpretation of the provisions of clause 16.3 of the Practice
Manual which provide
that:
“
Where
a file has been placed in archives, it shall have the consequences as
to further conduct by any respondent party as to the
matter having
been dismissed.”
[25]
These provisions as already indicated
above, cannot trump over the Rules of this Court. Thus, it cannot be
correct that if a file
is archived by way of a directive or as a
result of an administrative action by the office of the Registrar,
the implications thereof
are that the matter is dismissed for all
intents and purposes. In most instances, files are archived at the
instance of the Registrar
of this Court to the extent that there was
non-compliance with the Rules of this Court. Where however, there is
a directive from
a Judge to archive a file, the effect thereof is
that the file will remain dormant until such time that an application
is launched
in terms of the provisions of clause 16.2 to retrieve it.
Only upon a consideration of that application can a Judge (normally
in
chambers) dismiss the application to retrieve the file, which
would then have the effect of dismissing the review application. In
this case, it was contended on behalf of Mashiya that a directive was
sought from the Judge President in terms of the provisions
of clause
16 of the Practice Manual, but that the matter was not attended to.
It cannot however follow from those unsuccessful
attempts be
concluded that the review application in this matter is of necessity
dismissed.
[26]
To reiterate, a mere directive or
administrative action on the part of the office of the Registrar to
have a file archived cannot
have the status of a court order. A
matter can only be dismissed through a court order. Thus, if a
respondent party is of the view
that the applicant party in review
proceedings is not doing enough to expedite the finalisation of the
matter, including even after
the pleadings have been closed, the
appropriate route would be to approach the court with a
rule 11
application to dismiss that review application.
[27]
The net effect of clauses 11.2.3 and 16.1
of the Practice Manual if invoked is merely to deem applications as
withdrawn, which can
be reinstated by way of an application for
condonation as it had happened in this case, or where a matter is
archived in terms
of clause 16 of the Practice Manual, it can equally
be retrieved upon such an application by the affected party, unless
determined
otherwise by a Judge in chambers.
[28]
In circumstances where I am satisfied that
attempts were made to secure a set-down date as in this case, there
is no basis for a
conclusion to be reached that the file was
archived. This is especially where the applicant party had closed its
pleadings. In
essence, to the extent that Mashiya was of the view
that the applicant was dragging its feet, nothing prevented him from
approaching
this Court with a
rule 11
application. He cannot wait for
24 months and then complain that the applicant had done nothing to
expedite the review proceedings.
[29]
It follows from these conclusions that the
review application remains the underlying
causa
which gave rise to the writ. Whether that application remains
unopposed is not for this Court to determine. On Mashiya’s
own
version in any event, the answering affidavit to the review
application was filed on 27 December 2013, whilst the
supplementary
affidavit was filed by the applicant on 9 July
2014. As to whether the review application is opposed or not is an
issue to
be determined on another court date.
[30]
As to whether the execution of the writ is
a matter that is
res judicata
has to be assessed within the context of the orders issued by this
Court. Steenkamp J had stayed execution of the award on
9
January 2014 pending the final determination of the review
application, and the applicant’s contention was that the Court
could not even consider whether to stay the execution of the writ as
it was
functus officio
.
It was however submitted on behalf of Mashiya that Steenkamp J’s
order was obtained at the time when the writ of execution
had not
been issued by this Court, and further that Molahlehi J had not
granted an order that the writ of execution was to be set
aside or
stayed. On the strength of Molahlehi J’s order, it was
submitted on behalf of Mashiya that the implication
thereof was that
the applicant’s initial request to stay the writ was declined.
Thus, the argument went, the applicant sought
to re-introduce the
same matter before the same court, and between the same parties, and
was accordingly barred from doing so.
[31]
An order staying the execution of an award
as issued by Steenkamp J pending the final determination of the
review application means
that for all intents and purposes, the
award, in whatever form, cannot be executed. It is thus irrelevant
whether a writ was obtained
subsequent to that order, and the mere
fact that Mashiya only sought to execute the amount rather than
reporting for duty is neither
here nor there.
[32]
As correctly pointed out on behalf of the
applicant, the Court was
functus officio
in respect of the execution of the award and in my view, nothing can
be read into the fact that Molahlehi J had not dealt with
that issue
when it was before him in that it was not necessary to pronounce on
the execution of the writ in view of Steenkamp J’s
order.
Mashiya nevertheless contended that the order granted by Steenkamp J
staying the writ was in any event extended by Molahlehi J,
but
that order was interim pending the finalisation of the review
application. The argument went further that since the review
application had lapsed, the stay of execution was discharged. A
finding has already been made that there is no merit in the
allegation
that the review application had lapsed. The stay of
execution of the award therefore remains in effect until the review
application
is determined.
[33]
Of major concern however in this
application is the writ of execution sought to be stayed or set
aside. The applicant’s contention
was that to the extent that
the Arbitrator in the arbitration award had not quantified the amount
payable to Mashiya, the latter
was not entitled to an execution of
the amounts claimed, and that the writ ought to be set aside as it
was unlawful. The applicant
raised concerns as to how Mashiya arrived
at the sum of R2 million, and how the writ was issued in the manner
it was when the amounts
had not been quantified by a court or the
CCMA.
[34]
Mashiya in his answering affidavit
flippantly, merely noted the applicant’s concerns in this
regard, and contended that since
the award stated that he should be
reinstated with full salary and increments, the writ amount was
readily determinable.
[35]
The requirements of a valid writ of
execution entail that
there must be a judgement liability in
which the debt or other obligation of the judgement debtor, which is
to be enforced by the
sheriff, is specifically set out and described.
It was common cause that the arbitrator in issuing
the award only ordered the applicant to reinstate Mashiya and to pay
him back-pay,
including increments he would have been entitled to but
for his dismissal. It was further not in dispute that Mashiya had
unsuccessfully
approached the Bargaining Council on no less than two
occasions to vary the award and to quantify the amounts. As to how an
amount
as claimed by Mashiya was arrived at remains a mystery, as it
cannot be correct that an amount easily determinable from the award
is by necessity the amount that can be claimed in a writ.
[36]
As correctly referred to
by the applicant’s Counsel, Prinsloo AJ (as she then was) in
Engen
Basson’s Service Station v Vanqa
[6]
held
that “
a
writ of execution will be set aside as incompetent if the judgment
was not definite and certain, as where the amount payable can
be
ascertained only after deciding a further legal problem
”.
[7]
A valid judgment or
order is a prerequisite for the issuance of a writ. Thus a writ may
also be set aside if not issued in conformity
with the judgment; or
where the wrong party/entity is named therein as a party.
[8]
[37]
In this case, other than making the
assertion that the amount was easily determinable from the award
itself, it is not stated by
Mashiya as to how he had in any event
reached the amounts claimed particularly since the Bargaining Council
refused to vary the
award or quantify the amounts payable. Even more
worrying however is how the office of the Registrar of this Court had
issued the
writ when the award itself made no mention of the amounts
claimable. It follows that since the writ does not meet the basic
requirements
for it to be executable, it therefore ought to be set
aside. It further follows that there is no need to consider other
averments
made in relation to whether Mashiya had complied with the
provisions of the
State Liability Act.
Costs
[38]
This Court may make an award of costs in accordance with the
requirements of law and fairness. The applicant sought a cost order
de bonis propriis
on the basis that Mashiya’s current
attorneys of record were sent a lengthy letter on 8 February 2017
in which
the entire history of the matter was set out. The attorneys
were informed that to proceed with the attachment where there was an
order staying the execution of the award was tantamount to contempt
of court in view of Steenkamp J’s order. This did
not
appear to dissuade Mashiya and his attorneys of record from
persisting with their intention or actual execution of the writ.
[39]
It is my view that in the light of the conclusions reached on
all legal points raised on behalf of Mashiya, his attorneys of record
should have known better, especially after receipt of the
correspondence sent by the applicant as indicated above. There was
clearly
no basis for him to pursue the execution of the writ,
particularly in view of it being unlawful. However, taking into
account these
considerations and the requirements of fairness, I deem
it appropriate to order that only the costs of this application be
payable.
Order
[40] In
the premises, the following order is made:
1.
The matter is heard as one of urgency, and the failure to comply
with
the Rules of this Court relating to forms and service is condoned.
2.
The applicant is granted leave to supplement its urgent application
dated 23 October 2014 and to amend its notice of motion.
3.
The writ of execution dated 28 October 2014 is set aside.
4.
Any attachment pursuant to the above writ of execution is uplifted.
5.
The Sheriff is directed to immediately provide a return of service
demonstrating which account all monies (if any) were transferred to.
6.
The applicant is ordered to approach the office of the Registrar
of
this Court within seven (7) days of the date of this order for a
set-down date on an expedited basis in respect of its review
application under case number JR2740/13.
7.
The first respondent is ordered to pay the costs of this application.
__________________
E.
Tlhotlhalemaje
Judge of
the Labour Court of South Africa
Appearances
For the
Applicant:
Adv. L. Pillay with Adv. Karolia
Instructed
by:
State Attorney
For the
First Respondent:
Adv. MM.
Ndziba
Instructed
by:
Ruan Rabie Attorneys
[1]
Labour
Relations Act 66 of 1995
, as amended. (LRA)
[2]
Practice
Manual of the Labour Court of South Africa. (Practice Manual)
[3]
(1999) 20
ILJ 392 (LC) at 394H–395B.
[4]
Rule 8
provides,
in relevant part, that:
“
(1)
A party that applies for urgent relief must file an application that
complies with the
requirements of
rules 7(1)
,
7
(2),
7
(3) and, if
applicable, 7(7).
(2)
The affidavit in support of the application must also contain—
(a)
the reasons for urgency and why urgent relief is necessary;
(b)
the reasons why the requirements of the rules were not complied
with, if that is
the case; and
(c)
if a party brings an application in a shorter period than that
provided for in terms
of
section 68(2)
of the Act, the party must
provide reasons why a shorter period of notice should be permitted.”
[5]
At
paragraph 16.
[6]
(2014) 35
ILJ 1568 (LC).
[7]
Id at para
14.
[8]
Van Loggerenberg,
Erasmus
Superior Court Practice,
2nd ed
(Juta and Co (Pty) Ltd, Cape Town 2015) Vol 2 at D1-604 to D1-605.